Supreme Court Denies Property Owners Relief from Harrassment

On Monday, the Supreme Court weakened property owners’ protection against government harassment in Wilkie v. Robbins.  Law Professor Ilya Somin explains why the decision was wrongly decided here.

Plaintiff Harvey Robbins described an extended campaign of harrassment and intimidation against him by government officials seeking to obtain an easement across his land. But in a 7-2 decision on Monday, the Supreme Court held that he could not obtain relief either under the Fifth Amendment (through a so-called Bivens action) or under RICO, the federal racketeering statute.

Robbins ran a private cattle and commercial guest ranch in Wyoming.   His ranch extends for 40 miles, occasionally interspersed with property owned by the federal government. After he purchased the ranch, the Bureau of Land Management (BLM) sought to secure a right-of-way across the ranch — a right-of-way that the BLM allegedly once had but lost through its own carelessness, because it failed to record the right-of-way it was  granted by the person who owned the ranch before Robbins, resulting in Robbins having no notice of any such right-of-way when he purchased the ranch.

When Robbins refused, BLM retaliated.  BLM harrassed Robbins and guests at his ranch — including videotaping female guests while they relieved themselves — refused to maintain the public road providing access to his property, and brought false criminal charges against Robbins.  In response, Robbins sued BLM employees alleging that their actions violated the Fifth Amendment and RICO.

In an opinion by Justice Souter, the Supreme Court held that even if the BLM employees violated Robbins’s property rights under the Fifth Amendment, he could not sue them for damages.  First, it pointed out that there is no federal statute that expressly allows suits against federal officials for constitutional violations (by contrast, there is a federal statute expressly allowing suits against state and local officials for constitutional violations, called 42 U.S.C. 1983).

Second, it refused to extend its prior Bivens decision, which created an implied right of action allowing suits against federal officials for violations of constitutional rights.  That decision has been relied upon by the court to allow suits against federal officials for searches and seizures that violate the Fourth Amendment, and employment discrimination based on sex and other characteristics.  But the court refused to extend that implied right to sue to harassment that interferes with property rights.

It also refused to let Robbins sue the federal officials for racketeering, claiming that government bullies — unlike private bullies — are not guilty of extortion when they seek to enrich their employers, rather than their own individual pocketbooks, and that RICO thus does “not apply when the National Government is the intended beneficiary of the allegedly extortionate acts.”

Why the Supreme Court’s refusal to allow Robbins to sue under the Fifth Amendment was wrong is explained here.